Research › Search › Judgment

Chhattisgarh High Court · body

2008 DIGILAW 237 (CHH)

Ghunnu Ram Gawade v. State of Madhya Pradesh

2008-09-04

T.P.SHARMA

body2008
JUDGMENT :- This appeal is directed against the judgment of conviction and order of sentence dated 11-7-1990 passed by Additional Sessions Judge/Special Judge, Durg, in special Case No. 1/1988 whereby the appellant has been convicted for the offence punishable under Section 5(2) of the Prevention of Corruption Act, 1947 (for short the "Act") and Section 161 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and pay fine of Rs. 500/-, in default of payment of fine to further undergo RI for three months u/S. 5(2) of the Act and to undergo RI for one year u/S. 161, IPC 2. The judgment of the trial Court is challenged on the ground that without there being any proof of motive or reward and acceptance or recovery of the alleged illegal gratification in breach of mandatory provisions of Section 5 (1) of the Act, learned Special Judge has committed an illegality in convicting and sentencing the accused/ appellant as mentioned above. 3. Heard Shri V.G. Tamaskar, learned counsel for the accused/appellant and Ms. Sangita Mishra, Panel Lawyer for the respondent/State and perused the material available on record including the judgment impugned. 4. Case of the prosecution in short is that on 16-7-1986 accused/appellant was posted as clerk in the office of Tahsildar, Navagarh. Another accused Gotilal was posted as peon in the same office. Co-accused Jaleshwar was carrying out the work of Arji Navis in the premises of Tahsil Office. Co-accused Lakhanlal is the brother of accused Jaleshwar. Complainant Chandan Das was an agriculturist residing in village Manpur. As he was in need of Rin Pustika relating to his land, he produced the required certificate before the Naib Tahsildar, Navagarh. On the basis of said certificate the Naib Tehsildar directed for issuance of Rin Pustika to complainant chandan Das. Complainant Chandan Das went to the accused/appellant for collecting the Rin Pustika where complainant produced the said certificate Ex. P-1 before the accused/ appellant. On receiving the certificate, accused/appellant asked the complainant as to how much money did he bring with him. When the complainant said that he was having with him the cost of the Rin Pustika which was Rs. 2/- the accused/appellant told him that the Rin Pustika would not be given for Rs. 2/- and he would get the Rin Pustika after paying Rs. 60/- and returned the said certificate to him. 5. When the complainant said that he was having with him the cost of the Rin Pustika which was Rs. 2/- the accused/appellant told him that the Rin Pustika would not be given for Rs. 2/- and he would get the Rin Pustika after paying Rs. 60/- and returned the said certificate to him. 5. Complainant came back to his village to arrange the money asked for but on being advised by the villagers that the Rin Pustika is provided for Rs. 2/- he went to the office of Lokayukt, Raipur and filed the written complaint Ex. P-2. Superintendent of Police posted in the office of Lokayukt after receiving the complaint directed Shri B. D. Dhananjay who was posted as Inspector of Police in the Lokayukt office to investigate the matter. He also provided the complaint Ex. P-2 to the complainant for his satisfaction. Thereafter, he called Panch witness Surendra Kumar Saxena (PW-5) who read over the contents of Ex. P-2. The complainant told him that he did not want to give the bribe on that day to the accused/ appellant and requested for taking action against him. On being asked, he produced six currency notes of ten denomination number of which were taken down in the preliminary Panchanama Ex. P-1 and applied a layer of phenolphthalein powder thereon and kept the same in the pocket of the shirt of the complainant. They also asked the complainant not to shake hand with anyone and give the said currency notes to the accused/appellant on demand being made by him and while giving the money he should give the signal to them by keeping his hand over his head. Reaction of phenolphthalein powder and sodium carbonate was demonstrated. Preliminary Panchnama Ex. P-3 was prepared. The complainant and the trap party proceeded for the spot. Complainant went to Tehsil office and after coming back after some time, informed the trap party that the accused/appellant had gone to his house which is situated near the Tahsil office. Trap party sent the complainant to the house of accused/appellant and when he was going there, co-accused Gotilal met him on the way and both of them went to the house of accused/appellant where accused/ appellant demanded money from the complainant. Trap party sent the complainant to the house of accused/appellant and when he was going there, co-accused Gotilal met him on the way and both of them went to the house of accused/appellant where accused/ appellant demanded money from the complainant. When complainant gave money i.e., the six currency notes of 10 denomination asked for by the accused/appellant, he counted it and asked Chandan Das to remain present there. Accused/appellant and co-accused Gotilal went inside the room, discussed the matter and after some time they came out. Accused/appellant told the complainant to go to Arji Navis along with Gotilal. Complainant and co-accused Gotilal went to Arji Navis namely Jaleshwar. While going to Arji Navis. complainant informed the trap party about his giving money to the accused/appellant. Trap party went to the house of the accused/appellant and on inquiry, he admitted that he had taken money from the complainant but given it to co-accused Gotilal. After some time co-accused Gotilal and Jaleshwar also came there with Rin Pustika. After taking search of Gotilal, two currency notes of 10 denomination were recovered from the pocket of his full pant and one rupee coin and a currency note of two denomination were recovered from the pocket of his shirt. Accused Gotilal informed that he gave Rs. 40/- to the brother of Arji Navis Jaleshwar namely Lakhanlal but the same were not recovered from any of the accused persons. Full pant of accused Gotilal was seized vide Ex. P-10. Hands of accused Jaleshwar, Lakhanlal and Ghunuram the present were washed with sodium carbonate solution which turned pink. Panchnama Ex. P-11 was prepared. Register regarding issuance of Rin Pustika was seized vide Ex. P-5. Certificate Ex. P-1 was seized vide Ex. P4. Statements of the witnesses under Section 161 of the Code of Criminal Procedure were recorded, seized articles were sent for chemical examination to Forensic Science Laboratory, Raipur vide Ex. P-14 and on examination of the same presence of phenolphthalein powder and sodium carbonate solution on the seized articles was confirmed vide report Ex. P-16. Sanction to prosecute the accused/appellant was obtained vide Ex. P9. After completion of investigation charge sheet was filed against the accused/appellant. 6. In order to prove the guilt of the accused/appellant the prosecution has examined six witnesses. P-16. Sanction to prosecute the accused/appellant was obtained vide Ex. P9. After completion of investigation charge sheet was filed against the accused/appellant. 6. In order to prove the guilt of the accused/appellant the prosecution has examined six witnesses. Statement of the accused/appellant was recorded under Section 313 of the Code of Criminal Procedure in which he denied the material appearing against him in prosecution evidence and pleaded his innocence and false implication in the case. 7. After affording opportunity of hearing to the parties learned Special Judge convicted and sentenced the accused/appellant as mentioned above and acquitted co-accused Gotilal, Jaleshwar and Lakhanlal of the charges levelled against them. 8. It is argued on behalf of the accused/ appellant that the crime in question is investigated by Shri B. D. Dhananjay, Police Inspector, posted in Lokayukt Office, who was not authorized by the State Government as required under Section 5(A) (1) of the Act of 1947. Entire investigation conducted by the Police Inspector below the rank of Deputy Superintendent of Police is illegal. It is further argued that the prosecution has not proved the motive of the appellant and six currency notes of 10 denomination said to be given by the complainant were not recovered from his possession. Trap has been conducted after office hours and at that time the accused/appellant was not discharging his official duty. Rin Pustika was required to be prepared by he Naib Tehsildar who is competent to provide the same and not by the clerk. Therefore, the accused/appellant cannot be said to have misused his official position. Lastly he argued that the accused /appellant is facing trial since 1988 and after a lapse of 20 years for allegedly taking the bribe of Rs. 60/-, no purpose will be served in sending him to jail. 9. Reliance has been placed on behalf of the accused/appellant on the decision of Supreme Court in the matter of State of Ajmer (now Rajasthan) v. Shivjilal, AIR 1959 SC 847 : (1959 Cri LJ 1127) in which it has been held by the Apex Court that a Government teacher taking money for procuring job in railways is not a misconduct in the discharge of his duty. Further reliance is placed on the decision of the Apex Court in the matter of State of Goa v. Babu Thomas 2005 Cri LJ 4379 : (AIR 2005 SC 3606), in which it is held that sanction accorded by the officer not competent to accord sanction. Reliance is placed on the decision of the Apex Court in the matter of State v. Narasimhachary, 2006 Cri LJ 518 : (AIR 2006 SC 518) in which it has been held that sanction authenticated by Secretary to State Government in the name of governor is a public document and can be proved in terms of Sections 76 to 78 of the Evidence Act. It is further held that the alleged demand of bribe after signature on the document by the final authority for which demand is made creates suspicion about the demand of bribe. Further reliance is placed on the decision of the Apex Court, in the matter of State, Inspector of Police. Visakhapatnam v. Surya Sankaram Karri, 2006 Cri LJ 4598 : (2006 AIR SCW 4576) in which it has been held that investigation authorized by Superintendent of Police has to be in writing. Issuaqce of an oral direction is not contemplated under the Act and investigation by such officer is not fair, and it is illegal. Yet reliance is placed on the decision of the Apex Court in the matter of V. Venkata Subbarao v. State represented by Inspector of Police A. P. (2006) 13 SCC 305 : (2007 Cri LJ 754) in which it has been held that presumption under Section 20 of the Act of 1988 cannot be raised in the absence of any proof of demand of bribe. In the absence of demand of bribe and recovery of money from the house of the applicant cast doubt upon the story of the prosecution." 10. On the other hand the impugned judgment is supported on behalf of the respondent. 11. This is a case of criminal misconduct of demand of illegal gratification other than legal remuneration as a motive or reward by the public servant by abusing his official position and in such cases the prosecution is required to establish the following essential ingredients. On the other hand the impugned judgment is supported on behalf of the respondent. 11. This is a case of criminal misconduct of demand of illegal gratification other than legal remuneration as a motive or reward by the public servant by abusing his official position and in such cases the prosecution is required to establish the following essential ingredients. (i) accused was a public servant at the time of commission of offence; (ii) accused has misused or abused his official position; (iii) accused demanded illegal gratification other than legal remuneration as motive or reward; (iv) accused accepted or received such gratification; (v) offence is investigated by a competent authority under Section 5(a) of the Act of 1947 or Section 17 of the Act of 1988, (vi) Valid sanction was accorded by the Central Government or the State Government or the authority competent to remove such public officer from his office after subjective satisfaction. 12. In order to establish the contention of the parties, I have examined the material available on record including the oral as well as documentary evidence adduced by the prosecution. 13. It is not disputed that at the time of incident i.e. on 15-7-1986 and 16-7-1986 the appellant was posted as Clerk in Tehsil Office, Navagaon. According to the case of the prosecution complainant Chandan Das was in need of Rin Pustika, therefore, he contacted the appellant for the same. On being contacted, appellant demanded illegal gratification from the complainant for issuance of Rin Pustika. Trap party was constituted, complainant along with trap party went to Tehsil office on 16-7-1986 where appellant was not present and then they went to the house of the appellant. On perusal of the material collected by the prosecution it is revealed that the appellant who was a public servant at the time of commission of offence was in his house and the alleged demand and acceptance of illegal gratification for preparation and supply of the Rin Pustika by him or his office or the official authority, was made in his house itself. 14. For the demand and acceptance of illegal gratification by a public servant by abusing his official position, it is not necessary that such demand and acceptance should be in the office or during office hours. 14. For the demand and acceptance of illegal gratification by a public servant by abusing his official position, it is not necessary that such demand and acceptance should be in the office or during office hours. Prosecution is required to establish the fact that it was in connection with the official work and the public servant has misused or abused his official position. In the matter of State of Ajmer v. Shivajilal (1959 Cri LJ 1127) (supra), the accused was not authorized to procure a job for a person in railways, running shed therefore, he has not committed misconduct in discharge of his duty. 15. For reconsideration of the case of State of Ajmer (supra), a larger bench consisting of five Judges was constituted and while dealing with criminal misconduct by public servant in the matter of Dhanneshwar Narain Saxena v. Delhi Administration AIR SC 1962 195 : (1962 (1) Cri LJ 203) it has been held that it is not necessary to constitute the offence under clause (d) of Section 5 of the Act that public servant must do something in connection with his own duty and thereby obtain any valuable thing or pecuniary advantage. It is equally wrong to say that if a public servant were to take money from a third person, by corrupt or illegal means or otherwise abusing his official position, in order to corrupt some other public servant, without there being any question of his misconducting himself in the discharge of his own duty, he has not committed an offence under S. 5(1) (d). It is also erroneous to hold that the essence of an offence under S. 5(2) read with S. 5(1) (d) is that the public servant should do something in the discharge of his own duty and thereby obtain a valuable thing or pecuniary advantage. It is necessary that an accused person under Cl. (d) of S. 5(1) of the Prevention of Corruption Act while misconducting himself, should have done in the discharge of duty and thereby obtain any valuable thing or pecuniary advantage. If a public servant takes money from third party by corrupt or illegal means or otherwise abusing his official position, in order to corrupt some other public servant he commits offence under S. 5 (1)(d) read with 5(2) of the Prevention of Corruption Act. If a public servant takes money from third party by corrupt or illegal means or otherwise abusing his official position, in order to corrupt some other public servant he commits offence under S. 5 (1)(d) read with 5(2) of the Prevention of Corruption Act. In the matter of Dalpat Singh and another v. State of Rajasthan AIR 1969 SC 17 : (1969 Cri LJ 262), it has been held by the Apex Court that the acts complained of need not be in discharge of official duties. 16. In the instant case the appellant was posted as a clerk in Tehsil Office under the control of Tehsildar. It was also the duty of Tehsildar to ensure issuance of Rin Pustika to the farmers. The purpose for which the illegal gratification was demanded is not so remote with the duty of the appellant. Even if it is so, then to constitute criminal misconduct under clause (d) of Section 5 of the Act of 1947, the only thing necessary is that whether public servant abused his official position or not. The law relating to misconduct and misuse of official position has been well explained by the Apex Court in the case of Dhaneshwar Narain Saxena (supra). 17. The second question for consideration is whether the investigation conducted by the Police Officer below the rank of Dy. S. P. is illegal. Placing reliance in the matter of V. Venkata Subbarao (2007 Cri LJ 754) (supra) it is submitted on behalf of the appellant that the entire investigation has been conducted by the Inspector of Police B. D. Dhananjay who was below the rank of Dy. S. P. and he was not authorised by the State Government under Section 5(1) (A) of the Act of 1947. 18. The third point raised by the appellant in this appeal is the competency of the officer to investigate the offence. Here in this case the offence against the appellant was investigated by the Police Inspector B. D. Dhananjay (PW-6). He has stated in his statement that he was directed by the Superintendent of Police to investigate the matter and he has filed the document Ex. P-2 which shows that he was authorized by the Superintendent of Police to investigate the offence against the appellant punishable under Section 5 of the Act of 1947. Section 5-A of the Act of 1947 envisages that Dy. P-2 which shows that he was authorized by the Superintendent of Police to investigate the offence against the appellant punishable under Section 5 of the Act of 1947. Section 5-A of the Act of 1947 envisages that Dy. Superintendent of Police or the police officer not below the rank of an Inspector of Police authorized by the State Government, is competent to investigate the offence. Section 5-A of the Act of 1947 reads as under : "5-A. Investigation into cases under this Act :- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), no police officer below the rank; (a) in the case of the Delhi Special Police Establishment, of an Inspector of Police; (b) In the presidency towns of Calcutta and Madras, of an Assistant Commissioner of Police: (c) in the presidency town of Bombay, of a Superintendent of Police; and (d) elsewhere, of a Deputy Superintendent of Police, shall investigate any offence punishable under Section 161, Section 165 or Section 165-A of the Indian Penal Code (45 of 1860) or under Section 5 of this Act without the order of a Presidency Magistrate or a Magistrate of the First Class, as the case may be, or make any arrest therefore without a warrant: Provided that if a police officer not above the rank of an inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Presidency Magistrate or a Magistrate of the First Class, as the case may be or make arrest therefore without a warrant : Provided further that an offence referred to in clause (e) of sub-section (1) of Section 5 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police. (2) If from information received or otherwise, a police officer has reason to suspect the commission of an offence which he is empowered to investigate under sub-section (1) and consider that for the purpose of investigation or inquiry into such offence, it is necessary to inspect any bankers bo, then notwithstanding anything contained in any law for the time being in force, he may inspect bankers' books in so far as they relate to the accounts of the person, suspected to have committed that offence or of any other person suspected to be holding money on behalf of such person, and take or cause to be taken certified copies of the relevant entries therefrom, and the bank concerned shall be bound to assist the police officer in the exercise of his powers under this subsection : Provided that no power under this subsection in relation to the accounts of any person shall be exercised by a police officer below the rank of a Superintendent of Police." 18A. In the case of V. Venkata Subbarao v. State represented by Inspector of Police, A. P. (2007 Cri LJ 754) (supra) investigation was conducted by the officer not authorised under Section 17 of the Act of 1988 (identical provisions like Section 5-A of the Act of 1947). The investigating officer has stated that he was authorised by the Superintendent of Police but he failed to produce any such authorization, and the manner in which the investigation was conducted was condemnable and raised doubt about his bona fides. He has not examined important witnesses and not taken into consideration the documentary evidence. After taking into consideration the factum of condemnable investigation and absence of the document pertaining to authorization, the Apex Court has held that serious prejudice has been caused to the accused/appellant. Therefore, investigation was illegal. 19. In the matter of State of Andhra Pradesh v. P. V. Naryana, 1971 (1) SCC 183 : (1971 Cri LJ 676) in which while dealing with the provisions of Section 5(1) of the Act of 1947 it has been held by the Apex Court that in case of illegal investigation the Court is required to see whether it has resulted in prejudice to the accused. In the matter of State of Chhattisgarh v. Harmahendra Singh Gandhi (Criminal Appeal No. 843 of 2001 decided on 21-9-2005) it has been held by the Apex Court that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. While dealing with the provisions of Section 5-A of the Act of 1947 in the matter of H. N. Rishbud and another v. State of Delhi AIR 1955 SC 196 : (1955 Cri LJ 526) in which it has been held by the Apex Court that investigation by unauthorized person does not by itself is rendered illegal unless serious prejudice caused to the accused or party is shown and it does not affect the competence or jurisdiction of the Court. Relying on the decision in the matter of H. N. Rishbud (supra) it has been held by the Apex Court in the matter of Munnalal (in all appeals) v. State of Uttar Pradesh (in all appeals) AIR 1964 SC 28 : (1964 (1) Cri LJ 11) that investigation in violation of the provision is illegal. Trial is however not vitiated in absence of miscarriage of justice. I do not find force in the contention of the learned counsel for the appellant. 20. In the instant case the accused/appellant has not taken any such defence or objection at the time of trial or at the stage of appeal. Moreover, B. D. Dhananjay (PW-6) has specifically stated that he was directed by the Superintendent of Police to investigate the matter and accordingly, after receiving the complaint, he conducted preliminary inquiry and after satisfying himself proceeded for trap and undertook the investigation of the offence. No irregularity in the investigation has been shown by the defence which renders it unfair, condemnable or otherwise illegal. 21. In the light of aforesaid legal position, the defect or illegality of investigation, if any, does not affect the competency of the trial unless it results in serious prejudice to the accused. 22. According of sanction is an official act of the authority who accords sanction and the Court may presume the fact that judicial and official acts have been regularly performed in terms of clause (e) of Section 114 of the Evidence Act. 22. According of sanction is an official act of the authority who accords sanction and the Court may presume the fact that judicial and official acts have been regularly performed in terms of clause (e) of Section 114 of the Evidence Act. Sanction order is a public document within the meaning of Section 74 of the Evidence Act and it may be proved on its production. This should be done in two ways; (i) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (ii) by adducing evidence aliunde to show the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. In the matter of State of Goa (2005 Cri LJ 4379) (supra) it is held that the sanction accorded by the authority not competent to accord it, is no sanction. In the matter of State V. K. Narasimhachary (2006 Cri LJ 518) (supra) it has been held that sanction order is a public document under Section 74 and it cannot be asked to be proved as per S. 47 of the Evidence Act and authentication of the signature on the sanction order is sufficient to prove the same. In the matter of Mohd. Iqbal Ahamed v. State of Andhra Pradesh AIR 1979 SC 677 : (1979 Cri LJ 633) in which it has been held by the Apex Court that it is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways : (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show the facts placed before the. Sanctioning Authority and the satisfaction arrived at by it. Any case instituted without a proper sanction must fall because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio. What the Court has to see is whether or not the Sanctioning Authority at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same; any subsequent fact which may come into existence after the grant of sanction is wholly irrelevant. What the Court has to see is whether or not the Sanctioning Authority at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same; any subsequent fact which may come into existence after the grant of sanction is wholly irrelevant. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecution and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned. 23. Ex. P-9 is a public document and the prosecution has produced the original sanction order Ex. P-9 containing the details of the case of the prosecution. According sanction after subjective satisfaction by the Sanctioning Authority and the same does not suffer from any illegality or infirmity and thus the same is a valid sanction under the law. 24. The next question for consideration is that whether valid and proper sanction was accorded by the sanctioning authority under Section 6 of the Act of 1947 for prosecution of the accused/appellant? Sopan Sinde PW/-4 who was posted as Upper Division Clerk in the Secretariat, Revenue Department has stated that the sanction order of prosecution bears the signature of Shri Bhave, Principal Secretary. In the cross examination this witness has denied that the sanction order Ex. P-9 does not bear the signature of Shri Bhave. He has admitted that there is some correction in Ex. P-9 and nobody has put his signature after making correction, but that is a clerical mistake. 25. As regards question of demand and acceptance of gratification other than legal remuneration by the accused/appellant, Chandan Das (PW-1) has stated in his evidence that he was in need of Rin Pustika relating to his land, he produced the required certificate before the Naib Tehsildar, Navagarh. On the basis of said certificate the Naib Tehsildar directed for issuance of Rin Pustika to complainant Chandan Das. Thereafter, complainant Chandan Das went to the accused/appellant for collecting the Rin Pustika where complainant produced the said certificate Ex. P-1 before the accused/appellant. On receiving the certificate, accused/appellant asked the complainant as to how much money did he bring with him. When the complainant said that he was having with him the cost of the Rin Pustika which was Rs. P-1 before the accused/appellant. On receiving the certificate, accused/appellant asked the complainant as to how much money did he bring with him. When the complainant said that he was having with him the cost of the Rin Pustika which was Rs. 2/- the accused/ appellant told him that the Rin Pustika would not be given for Rs. 2/- and he would get the Rin Pustika after paying Rs. 60/-and returned the said certificate to him. Thereafter, the complainant came back to his village to arrange the money asked for but on being advised by the villagers that the Rin Pustika is provided for Rs. 2/-, he went to the office of Lokayukt, Raipur and filed the written complainant Ex. P-2 before the Superintendent of Police. Officer of the Vigilance department demanded the money from the complainant and applied phenolphthalein powder over the currency notes and same were kept in the pocket of the shirt of the complainant with a direction that he would give the money to the accused at the moment he demands it. Thereafter, the complainant and the trap party proceeded for the spot. Complainant went to Tehsil office and after coming back after some time, informed the trap party that the accused/appellant had gone to his house which is situated near the Tehsil office. Trap party sent the complainant to the house of accused/ appellant and when the was going there, co-accused Gotilal met him on the way and both of them went to the house of accused/appellant where accused/appellant demanded money from the complainant. When complainant gave the money asked for by the accused/appellant, he counted it and asked Chandan Das to remain present there. Accused/appellant and co-accused Gotilal went inside the room and after some time they came out. Accused /appellant told the complainant to go to Arji Navis along with Gotilal. Complainant and co-accused Gotilal went to Arji Navis namely Jaleshwar. While going to Arji Navis. complainant informed the trap parry about his giving money to the accused/appellant. Trap party went to the house of the accused/appellant and on inquiry, he admitted that he had taken money from the complainant but given it to co-accused Gotilal. After some time co-accused Gotilal and Jaleshwar also came there with certificate Ex. P-1. Gotilal was produced before the trap party and Rs. 20 or 30 were found in his possession. Certificate Ex. P-1 was seized vide Ex. After some time co-accused Gotilal and Jaleshwar also came there with certificate Ex. P-1. Gotilal was produced before the trap party and Rs. 20 or 30 were found in his possession. Certificate Ex. P-1 was seized vide Ex. P-4. 26. B. D. Dhananjay (PW-6) who conducted the trap has categorically stated the entire story of the trap had proved the documents of Ex. P-2 to P-16. According to his statement, after receiving written complaint from the Superintendent of Police he asked the complainant about the complaint and called Panch witness Surendra Kumar Saxena (PW-5). He asked the complainant to produce the currency notes on which he produced six currency notes of 10 denomination numbers of which were recorded in Panchnama Ex. P-3 and after coating phenolphthalein powder they were kept in the pocket of the shirt of the complainant with a direction that he would give the same to the accused as and when he so demanded and after giving money he would give signal by putting his hands over his head. Reaction of phenolphthalein powder and Sodium Carbonate was demonstrated. Thereafter, they went to the Tehsil office where applicant was posted but as the office was closed they went to the house of the appellant and on enquiry the appellant admitted to have taken Rs. 60/- and gave it to Gotilal for receiving the Rin Pustika. Hands of the accused/appellant were washed with the solution of sodium carbonate which turned pink in colour. Meanwhile, Gotilal and Jaleshwar also came there. Their hands were washed in the solution of Sodium carbonate which turned blue. On search two currency notes of Rs. 10/- denomination were found in the possession of Gotilal. Number of the currency notes were tallied with the Panchnama Ex. P-3. Currency notes, one pant, and other documents were seized vide Ex. P. 10, details of proceedings were recorded in the final Panchnama Ex. P-11. Dehati Nalisi Ex. P-12 was recorded and based on that FIR Ex. P-13 was registered. All the seized articles were sent for chemical examination and that being done presence of phenolphthalein powder on those articles was confirmed vide Ex. P-16. 27. Surendra Kumar Saxena (PW-5) has also corroborated the statements of Chandan Das (PW-1) and B. D. Dhananjay (PW-6). Ranjit Singh (PW-2) has supported the seizure of register Ex. P-6 vide Ex. P-5. All the seized articles were sent for chemical examination and that being done presence of phenolphthalein powder on those articles was confirmed vide Ex. P-16. 27. Surendra Kumar Saxena (PW-5) has also corroborated the statements of Chandan Das (PW-1) and B. D. Dhananjay (PW-6). Ranjit Singh (PW-2) has supported the seizure of register Ex. P-6 vide Ex. P-5. M. R. Tirkey (PW-3) has stated in his evidence that he had issued the certificate Ex. P-7 and the entry in the said register was made by the appellant. He has also stated that the appellant used to make the entry regarding distribution of Rin Pustika in the register Ex. P-6. He has admitted that no fee for issuing the Rin Pustika is required from the persons belonging to the scheduled caste category. 28. The statement of the complainant Chandan Das and investigating Officer is corroborated by the statement of Surendra Kumar Saxena (PW-5). The defence has cross examined Chandan Das (PW-1), Surendra Kumar Saxena (PW-5) and B. D. Dhananjay (PW-6) at length. Chandan Das (PW-1) has stated in paragraph 9 of his evidence that when accused/appellant demanded Rs. 60/- from him instead of Rs. 2, he did not go to the Tehsildar because of the fear that he might demand more money. The suggestion that the accused/appellant did not ask for money, has been denied by this witness. Surendra Kumar Saxena (PW-5) has stated in his cross examination that complaint Ex. P-2 was not written before him. B. D. Dhananjay (PW-6) has admitted in his cross examination that if a powder ceated note is given to some other person or if someone with powdered hands, shakes hands with the other person then the presence of powder is very much there with such person to whom such note is given or who is made to shake hand. But in this case, the complainant or any witness has not stated that he gave the powder ceated notes to any person other than the accused/appellant. The accused/appellant himself has not stated that his hands came into contact with the complainant or any member of the trap party. The defence has not asked any question to B. D. Dhananjay (PW-6) that hand wash solution of the appellant did not turn pink and the presence of phenolphthalein was not confirmed. The accused/appellant himself has not stated that his hands came into contact with the complainant or any member of the trap party. The defence has not asked any question to B. D. Dhananjay (PW-6) that hand wash solution of the appellant did not turn pink and the presence of phenolphthalein was not confirmed. The appellant has not taken the plea of enmity or any other circumstance to show that the complainant or the trap party has falsely implicated him. In this case, the powdered ceated notes were not recovered from the appellant. However, complainant Chandan Das has specifically stated that the appellant demanded Rs. 60/-as gratification and he gave the six powdered ceated currency notes of ten denomination to the appellant who after taking the money went inside the room along with Gotilal and after having discussion they both came out and appellant asked Gotilal to accompany the complainant to the house of Arji Navis Jaleshwar for taking Rin Pustika. While the complainant was going to the house of Jaleshwar along with Gotilal, on the way he informed the trap party that he had given the money to the appellant. After sometime Jaleshwar and Gotilal came to the house of the accused/appellant. No currency notes were found with the accused/appellant but two currency notes often denomination were found in the pocket of Gotilal. On inquiry Gotilal told that rest of the currency notes he had given to one Lakhanlal, brother of Jaleshwar. 29. In the case of V. Venkata Subbarao (2007 Cri LJ 754) (supra) the prosecution has failed to prove the demand of gratification. Prosecution has adduced evidence that money was paid by the accused and he counted the same with both hands but when the fingers of his one hand were dipped in the sodium carbonate solution, and then the solution turned pink. A lot of improvements were made in the evidence by the complainant and other witnesses and after taking into consideration the evidence in detail, the demand was not found proved. 30. In this case, the complainant has stated that the appellant demanded bribe of Rs. 60/- for preparation of Rin Pustika, he reported the matter to the Vigilance Department and on the date of incident also he demanded Rs. 60/- from him. 30. In this case, the complainant has stated that the appellant demanded bribe of Rs. 60/- for preparation of Rin Pustika, he reported the matter to the Vigilance Department and on the date of incident also he demanded Rs. 60/- from him. After taking the money the accused/appellant and co-accused Gotilal went inside the room and after some time when they came out, appellant asked Gotilal to take the complainant to Jaleshwar for collecting Rin Pustika. Thereafter, two currency notes of ten denomination were found in the possession of Gotilal and rest he told to have given to Lakhanlal, brother of Jaleshwar. 31. Defence has cross examined these witnesses at length but nothing has been brought anything in the cross examination to discredit the above mentioned facts that the appellant was posted as clerk in the office of Tahsildar and it was his duty to issue Rin Pustika to the farmers and that he demanded and accepted Rs. 60/- from the complainant for preparation of the Rin Pustika and immediately thereafter he along with Gotilal went inside the room and after some time they came out and appellant asked Gotilal to accompany the complainant to the house of Jaleshwar for collecting the Rin Pustika and out of the amount of Rs. 60/-, Rs. 20/- were recovered from Gotilal. Prosecution has obtained sanction vide Ex. P-9 to prosecute the accused/appellant according to the provisions of Section 6 of the Act of 1947. 32. After appreciating the evidence available on record learned trial Court has convicted and sentenced the accused /appellant as mentioned above. 33. In the present case the investigation was conducted by the person who was not competent to investigate the offence. But no prejudice has been shown to have been caused to the accused/appellant if the investigation has been conducted by an officer not competent to do so. The defect in the investigation will not affect the competence of trial. Sanction accorded by the competent authority is also a valid sanction and fulfills the requirement of Section 6 of the Act of 1947. Statement of complainant Chandan Das and B. D. Dhananjay (PW-6) is trustworthy and inspire confidence. Their statements can be safely relied upon. 34. Conviction is based on reliable and credible evidence. I do not find any illegality or irregularity in the judgment impugned. Statement of complainant Chandan Das and B. D. Dhananjay (PW-6) is trustworthy and inspire confidence. Their statements can be safely relied upon. 34. Conviction is based on reliable and credible evidence. I do not find any illegality or irregularity in the judgment impugned. As regards sentence, the accused has been found guilty of the offence punishable under Section 5(2) of the Act and u/S. 161 of the Indian Penal Code and he has been sentenced to undergo rigorous imprisonment for one year and pay fine of Rs.500/-, in default of payment of fine to further undergo RI for three months u/S. 5(2) of the Act and to undergo RI for one year u/S. 161 of the Indian Penal Code. The accused/appellant demanded and accepted Rs. 60/- in the year 1986 and he is facing trial since then. Taking into consideration the amount demanded and accepted as illegal gratification and the period of pendency of the proceedings I am of the opinion that rigorous imprisonment for three months and fine of Rs. 3000/-would reasonably meet the ends of justice. 35. Accordingly, the appeal is partly allowed. Conviction imposed on the appellant under Section 5(2) of the Act and S. 161 of the Indian Penal Code is maintained. However, the accused appellant is sentenced to undergo rigorous imprisonment for three months and pay fine of Rs. 3000/-, under Section 5(2) of the Act and to undergo rigorous imprisonment for three months under Section 161 of the Code of Criminal Procedure. Both the sentences shall run concurrently. Appeal partly allowed.